We should have learned from last year's healthcare case that it's a fool's errand to read too much into supreme court oral arguments. Defenders of Obamacare felt certain that they'd lost a second after the justices swept out of the courtroom – and not only did the health law survive, but it survived thanks to John Roberts, the skeptical-sounding chief justice, and not Anthony Kennedy, the assumed swing justice who ended up writing a stinging dissent.

So, take all predictions on the outcome of Hollingsworth v Perry with an icy road's worth of salt. It is way, way too soon to predict how things will pan out. Several justices – not just Kennedy but also Roberts and Sonia Sotomayor – probed both lawyers quite hard, and their questions did not offer much more insight into the court's game theory than we had yesterday.

The liberal justices on the bench eviscerated Charles Cooper's argument that the state can prohibit same-sex marriages in order to encourage procreation. Stephen Breyer noted that infertile couples get married all the time. Ruth Bader Ginsburg cited an earlier decision guaranteeing prisoners serving life sentences the right to marry. Elena Kagan, drawing laughter, wondered whether Cooper would defend a law that banned straights over 55 from marriage – leading to a creepy exchange in which Cooper suggested that an older man might be able to knock someone up besides his elderly wife.

But Kennedy, despite his support for gay rights in several previous cases, appeared more troubled. He observed that the children of gay couples may be disadvantaged by their parents' inability to marry, which offers hope. But he also stated that heterosexual marriage had "2,000 years of history or more" behind it, and he worried that a sweeping ruling would be an action too soon. Kennedy is legitimately struggling with himself, it seems, failing to find either a federal right to same-sex marriage or a means to uphold an obviously discriminatory ballot initiative.

That suggests that the most likely outcome remains the one I predicted Monday: a dismissal of the case for lack of standing. Remember that Arnold Schwarzenegger and Jerry Brown, the former and current governors of California, both refused to defend the legitimacy of Prop 8 when Perry entered the federal system. In their place, the original group that got Prop 8 on the California ballot (an outfit called ProtectMarriage.com) has fought the case. But several justices were skeptical that this group had any right to appeal, and that concern seems to have cut across the traditional partisan divide of the court.

The firebreathing conservative Antonin Scalia insisted that standing was not an issue, and the liberal Kagan seemed to agree. But Breyer asked whether the defenders of Prop 8 were "no more than a group of five people", who couldn't show they'd suffered any real injury and therefore didn't deserve their day in court. "I just wonder if the case was properly granted," mused Kennedy, who sounded exasperated at times in the audio recording of Tuesday's arguments. And Roberts suggested that while there may be some individuals who could show an injury, these people weren't them:

"I suppose there might be people out there with their own personal standing, someone who performs marriages and would like that to remain open to everyone but would prefer not to perform same-sex marriages, or other people. We seem to be addressing the case as if the only options are the proponents here or the State. I'm not sure there aren't other people out there with individual personalized injury that would satisfy Article III [of the constitution]."

There may not be five votes in either direction on Prop 8, and a narrow ruling on standing could be the court's best way out. A letdown, sure. But such a decision does not spell doom for us. Even a dismissal in Perry will (probably) re-open California, the largest state in the union, to same-sex marriage.

And there is also Wednesday's case, US v Windsor, which concerns the constitutionality of the Defense of Marriage Act (Doma). Windsor has always been the easier victory, and if we're lucky, the supremes will follow the logic of the second circuit and throw out Doma because gays are a "suspect class" that deserves the protections of the constitution's equal protection clause. If that happens – for the very first time in the court's history – then all laws that exclude or discriminate against gays, including marriage laws, will be called into question.

Again: the issue isn't how many states allow same-sex marriage come June, but whether they rule that same-sex marriage is a matter of – as it says on the frieze of the courthouse – equal justice under law.

One final note. In the healthcare case, panicky defenders of Obamacare wailed that the solicitor general, Don Verrilli, had let down the team – and that his weak arguments before the bench may have doomed the case. Nobody can say the same today about Ted Olson, who forcefully and continuously insisted that marriage is a matter of the highest importance, the proof of equality in America. When Scalia obnoxiously asked him to name the date at which banning same-sex marriage became unconstitutional, Olson successfully parried: whenever society came to understand that "sexual orientation is a characteristic of individuals that they cannot control," and therefore deserved the equal protection of the laws.

It's worth remembering today that when almost all gay rights organizations were afraid of going to court, Olson was willing to argue what they would not: that gay rights are civil rights. That once-controversial argument is closer and closer to being a given in American society, endorsed by the president himself in his second inaugural address. Whichever way Tuesday's case goes, on that count Olson has won – and so have we all.